Atencio v. Board of Educ. of Penasco Independent School Dist. No. 4

• Decision Date: 22 November 1982
• Docket Number: No. 14502,14502
• Parties: , 8 Ed. Law Rep. 513 Victor B. ATENCIO, Plaintiff, v. BOARD OF EDUCATION OF PENASCO INDEPENDENT SCHOOL DISTRICT NO. 4, et al., Defendants.
• Court: New Mexico Supreme Court

Page 1012

655 P.2d 1012

99 N.M. 168, 8 Ed. Law Rep. 513

Victor B. ATENCIO, Plaintiff, v. BOARD OF EDUCATION OF PENASCO INDEPENDENT SCHOOL DISTRICT

NO. 4, et al., Defendants.

No. 14502.

Supreme Court of New Mexico.

Nov. 22, 1982.

Rehearing Denied Dec. 13, 1982.

[99 NM 169] Steven L. Tucker, Jones, Gallegos, Snead & Wertheim, P.A., Santa Fe, for plaintiff.

C. Emery Cuddy, Jr., Simons, Cuddy & Friedman, Santa Fe, for defendants.

Vodene Patterson, President, Nat. Educ. Ass'n of New Mexico, William McGuen, N.M. State Bd. of Educ. Santa Fe, for amicus curiae.

OPINION

FEDERICI, Justice.

This matter is before this Court through certification from the United States District Court for the District of New Mexico, Honorable Santiago Campos, District Judge, pursuant to Section 34-2-8, N.M.S.A.1978 (Repl.Pamp.1981). Wells v. County of Valencia, 98 N.M. 3, 644 P.2d 517 (1982); Langham v. Beech Aircraft Corporation, 88 N.M. 516, 543 P.2d 484 (1975). This is a case of first impression involving an interpretation of the Certified School Personnel Act, Sections 22-10-1 through 22-10-26, N.M.S.A.1978 (Cum.Supp.1982). The case of Victor B. Atencio v. Board of Education of Penasco Independent School District, No. 4, et al, No. CIV 79-658(C) is a lawsuit by a tenured teacher who became an administrator in the Penasco Independent School District and who was later refused reemployment as a teacher after he was discharged as Superintendent of that district. Mr. Atencio alleged that notwithstanding his employment and discharge as Superintendent he nonetheless retained teacher tenure rights in the school district. He further alleged that when the school district sought to deny him reemployment as a tenured teacher without providing him a hearing pursuant to Section 22-10-15, he was deprived of a property right without due process of law.

The question certified to this Court pursuant to Section 34-2-8 is:

Does a certified school instructor, who has previously acquired tenure rights as a certified school instructor with a public school district, lose those tenure rights as a result of being reemployed for the next consecutive school year as a certified school administrator?

The following stipulated facts were certified to this Court:

1. Plaintiff Victor B. Atencio (Atencio) was originally employed by the Board of Education of the Penasco Independent School District (the Board) as a certified school instructor in 1954.

2. Atencio was subsequently reemployed as a certified school instructor by consecutive one-year contracts until the 1958-1959 school year, at which time he acquired tenure rights as a certified school instructor with the school district.

3. Atencio continued to be reemployed by the Board as a certified school instructor for each consecutive school year through the 1973-1974 school year.

4. For the 1974-75 school year, and thereafter, Atencio was consecutively reemployed by the Board, as a certified school administrator and, as such, was required to spend more than one-half of his employment time in administrative functions.

5. At all material times, Atencio held certification from the State Board of Education as a certified school instructor and a certified school administrator.

It is our opinion that a certified school instructor, who has previously acquired tenure rights as a certified school instructor with a public school district, loses those tenure rights as a result of being reemployed for the next consecutive school year as a certified school administrator.

There is a paucity of legal authority on this issue and there are no New Mexico court decisions that have addressed the precise issue presented here. We note that the Office of Attorney General of New Mexico issued a formal advisory opinion on this question. 68 Op. Att'y Gen. 17 (1968). Regarding the weight this Court will afford Attorney General opinions, we said in First Thrift and Loan Association v. State, 62 N.M. 61, 70, 304 P.2d 582, 588 (1956):

We are not bound by them in any event, giving them such weight only as we deem they merit and no more. If we think them right, we follow and approve, and if convinced they are wrong, * * * we reject and decline to feel ourselves bound.

In this case, we decline to be bound by 68 Op. Att'y Gen. 17 (1968) and proceed to our independent analysis and results.

We observe initially that there is a sharp division of authority from other jurisdictions which have addressed the issue of whether a superintendent is also a teacher for tenure or other purposes. See generally Annot., 94 A.L.R.3d 141 (1979); 78 C.J.S. Schools and School Districts Sec. 180(e)(2) (1952). A review of those authorities and the cases provided by counsel discloses that the reason for this division of authority lies in the differences in language of the various state teacher tenure acts, the legislative history of the various acts and the statutory construction that the courts have applied in interpreting those acts. We have found but few cases which have considered the narrow issue in this present case.

In Floyd v. Board of Education of Greenup County, 598 S.W.2d 460, 461 (Ky.Ct.App.1979), the Kentucky Court of Appeals said that under the Kentucky Teacher Tenure Act a school superintendent "obviously lost his status as a teacher once he obtained the position of superintendent." Similarly, in Seyfang v. Bd. of Trustees of Washakie, Etc., 563 P.2d 1376 (Wyo.1977), the Supreme Court of Wyoming held that a school superintendent, terminated from that position, was not thereafter entitled to tenure protection as a teacher within the meaning of the Wyoming Teacher Employment Law. Compare Williams v. Board of Ed., Cass R-VIII Sch. Dist., 573 S.W.2d 81 (Mo.Ct.App.1978); Board of Education v. Sand, 227 Minn. 202, 34 N.W.2d 689 (1948); Houtz v. School Dist. of Borough of Coraopolis, 357 Pa. 621, 55 A.2d 375 (1947).

Since tenure is a creature of statute, it has been recognized that the cases from other jurisdictions are of little assistance to a court interpreting the tenure laws of its state. Hudson v. Marshall, 549 S.W.2d 147 (Mo.Ct.App.1977). Accordingly, in order to seek a resolution of the precise certified question in this case we must turn to a statutory interpretation of our Certified School Personnel Act. In New Mexico it is well settled that the purpose of the Certified School Personnel Act was to promote a sound public policy of retaining in the public school system teachers who have become increasingly valuable by reason of their experience. By statute these public servants are assured an indefinite tenure of position during satisfactory performance of their duties. Hensley v. State Board of Education, 71 N.M. 182, 376 P.2d 968 (1962); Stapleton v. Huff, 50 N.M. 208, 173 P.2d 612 (1946); Ortega v. Otero, 48 N.M. 588, 154 P.2d 252 (1944). Additionally, we have also had occasion to discuss the general rights of a school superintendent. Cf. Vigil v. Barela, 71 N.M. 213, 377 P.2d 515 (1962). E.g. Atencio v. Bd. of Ed. of Penasco Ind. Sch. Dist., 658 F.2d 774 (10th Cir.1981).

Since the time the above cases were decided, the Legislature has enacted major changes to the Certified School Personnel Act. See generally N.M.Laws 1967, ch. 16. In particular, the Legislature amended the earlier Act relating to tenure by enacting certain exceptions, N.M.Laws of 1967, ch. 16, Sec. 118, which is now codified as Section 22-10-16(B). It provides:

Sections 22-10-12 through 22-10-15 NMSA 1978 do not apply to the following:

* * *

* * * B. a certified school instructor who is also a certified school administrator and who is required to spend more than one-half of his employment time in administrative functions; (Emphasis added.)

More recently the New Mexico Legislature amended Section 22-10-14, N.M.Laws of 1979, ch. 86, Sec. 1, regarding teacher tenure rights, by adding the following paragraph:

B. Retirement, discharge or a voluntary resignation accepted by the local school board or the governing authority of the state agency by a certified school instructor with tenure rights from a position with a school district or state agency shall extinguish all tenure rights of the certified school instructor upon the effective date of the retirement, discharge or resignation, or on the date of acceptance by the local school board or the governing authority of the state agency, whichever is earlier. If a certified school instructor is subsequently employed by the school district or state agency, he may again earn tenure rights, but previous years of employment with the school district or state agency shall not be considered as years of service for the purpose of earning tenure rights. (Emphasis added.)

We believe it was the clear intention of the Legislature in amending the Certified School Personnel Act to separate the rights of a certified school administrator from those tenured rights afforded a certified school instructor. The statute shows a clear legislative intent to limit the rights of tenured certified school instructors when there has occurred "retirement, discharge or a voluntary resignation" from otherwise established tenure rights. Certified school instructors who are also certified school administrators and who spend more than half their employment time on administrative functions are the class of persons not covered by, nor are they within the...